Safe Working Surrounding for Employees - Case Study Example

Name: Course: Instructor: Date: Employment Law Table of Contents Introduction 1 An Overview of Jason v Sinbad Pyrotechnics Pty Ltd Case 2 Precedent Law: Endeavor Energy v CEPU [2012] FWAFB 4998 4 The Discussion: Generally 6 Conclusion 10 Bibliography 12 Introduction Employment laws are meant to guard the rights of both the employee and their employer. The rules are meant to be used in coming up with employment contracts and ensure that the work surrounding is safe for the employees. Moreover, in cases where disputes arise between the employee and their employer, employment laws are used to solve disputes. In case of Jason, he is seeking advice to establish whether he has to comply with his employer’s new policy. The policy requires that all employees be drug-free when working with fireworks. Given that this is a relatively new policy, some employee, in particular, have declined to have their urine sample collected rather he would like to offer a saliva sample. The saliva sample does not give reliable results as the urine sample hence the employer has resorted to taking disciplinary measures against Jason. The rationale of this paper, therefore, is to advice Jason accordingly by taking into account the employment laws of the state of Victoria.1 Moreover, a Case Law infamously referred to as the 4Endeavor Energy v CEPU [2012] FWAFB 4998 will be used to clearly help Jason visualize the possible pitfalls so that he can cautiously avoid them even as he seeks legal redress. An Overview of Jason v Sinbad Pyrotechnics Pty Ltd Case The Work Choices Legislation was introduced in 2006 as an amendment to the Workplace Relations Act 1996. With its introduction, the Australian Industrial Relations is now regulated by federal legislation. Nonetheless, some elements of the employment relationship are still governed by the law of the state in which the employees work.2 In this case, Jason works in the Victoria State hence the laws of the Victoria State will be used to solve this case. At this point, it is vital to establish whether the process by which Jason was hired was done as required by the laws of Victoria. When an employer wants to hire some new workforce, there are some conditions that they should meet among which Jason’s company met. The first condition is that the employer should be to set the minimum terms and conditions of employment; this often applies to the wages and the qualification for employment.3 Jason had to work as a trainee for two years after which he would be confirmed to be a pyrotechnician. The condition was that he had to prove satisfactory to his employer that I think he did because he has worked for the organization for close to eight year. Moreover, the other consideration is the employment contract; this contract is an agreement between the employer and the employee on how the job will work out for both of them. A variety of contracts exists under the Workplace Relations Act. Such arrangements can be made by an employer unilaterally in some cases or with a union or its employees. Jason’s agreement was between himself and his employer hence the employee fulfilled this condition. After his appointment, Jason was given a letter that I presume an appointment letter, and he did not hoist any apprehensions about the message or its content meaning that he agreed to the terms specified in the contract. Furthermore, the employer apparently informed him that the policies were bound to change any time. There are several issues that arise in Jason’s case, and those are the issues that this paper is based on. Some of the issues include whether Jason and other employees were consulted when the organization was coming up with the policy. The other issue is whether the organization had the obligation to consult the employees before implementing the policy. Moreover, the paper aims to determine whether the new policy was infringing on the rights of the workers and in particular Jason, who had declined to have his urine sample collected. The other issue of is whether the results of the test would be confidential. In general, civil liberties are guaranteed by the Constitution, and if a policy goes against this policy, the policy is deemed invalid. Precedent Law: Endeavor Energy v CEPU [2012] FWAFB 44998 This was a case that entailed a scenario in which the employer sought to introduce urine testing as a drug testing means in his company – a policy that was objected by the employees’ unions in majority. According to Endeavor Energy Enterprise Agreement 2010, the two parties settled on “Fair Work Australia” to arbitrate the dispute. Just like in the case of Sinbad Pyrotechnics Pty Ltd, the employee unions and the said employer were in total agreement that occasional drug testing among the employees was quite welcome. The only bone of contention was the means by which the testing was to be done. To the unions, the use of urine in this case was not only a suitable an infringement on the privacy rights of the employees, but also an unsuitable method for testing drugs among employees. It was arbitrated that the employer’s proposal to have urine samples tested for all employees was not worth adopting because of a number of reasons. First, saliva was still an option that could serve a similar purpose. Second, with the use of saliva for the testing, it is possible to establish whether the employee indeed took the drugs recently. This, as was claimed by the tribunal, was not possible when using the urine for the test. Third, urine testing was established to be capable of showing presence of drugs in the employee’s system even when it was actually taken several days ago. With the use of saliva for the test, it was established that only recent consumption of drugs is discovered, which is what was sufficient for the employer in question. Just like it was with this precedent law, the Jason’s employer is likely to appeal any decision of a similar kind. In this precedent law, the employer argued that this first instance gave 5no regard to the Work, Health, and Safety Act 2011. Additionally, the employer legally argued that the decision was contrary to the case law on CFMEU v HWE Mining Pty Ltd [2011] FWA 8288 as was determined by Lawler VP. This is indeed a stand that Jason should be well prepared for just in case his application is upheld in the first instance. How then should he defend himself, at least legally, in case Sinbad Pyrotechnics Pty Ltd appeals this decision? Let’s look at the way this case was handled on an appeal by the employer in the case law: Endeavor Energy v CEPU [2012] FWAFB 4998. The unions’ defense can be obtained from the reasons given by the full bench judges when the first ruling was appealed by the employer. On its ruling, the full-judge bench determined that the tribunal would rather have concentrated on establishing the amounts of urine and saliva testing that would be necessary for cannabis in particular. This way, it would have been easier to establish the use of this drug in the employees’ system since it was the most used drug in most workplaces in Australia. In his defense, therefore, Jason should prepare himself along this line. The Appeal Bench, on its part, dismissed the employer’s claim that the unreasonability of urine testing was simply influenced by a non-expert. The bench dismissed this claim on the grounds that despite the fact that the giver of this information was not a qualified toxicologist per se, this person was extremely knowledgeable in matters workplace alcohol and drug abuse. On the allegation that the first instance did not take into account the responsibilities of the employer under the WHS Act, the Full Bench dismissed this on the following grounds. First, in obliging to the WHS Act, it was not clearly dictated that urine testing be done on employees other than any other better and efficient alternative sample such as urine. Secondly, the employer had not explained how the use of saliva testing would not drive home his obligation under the WHS Act. Finally, the bench claimed that the tribunal implicitly valued the WHS Act, though the employer rarely noticed this. The Discussion: Generally When drafting a new policy, the organization should consider the nature of the risks arising from the business processes of the organization. The company’s mission, vision as well the core values of the organization must be considered, and the policy should be incorporated into the new system. Furthermore, the policy should be aimed at improving the workplace environment.6 Just like in any other states, this condition applies to the Victoria State. For this reason, it is imminent to determine whether the policy followed this condition. The company that Jason works for deals with fireworks and if the employees work under the influence of drugs, a disaster can happen because the employees will be making a poor judgment. In my estimation, the company developed the policy with the aim of improving the workplace safety. Moreover, the company was well aware of what could happen if the employees were under the influence of drugs hence the reason for developing the policy. The other issue in Jason’s case is the communication of the policy. It is a requirement that a policy should be communicated to all employees working under the control of the company with the aim that they are made aware of their individual safety and obligations. It should be accessible to interested parties, including contractor’s vendors and site visitors. The communication of the new policy should aid in exhibiting the intent of the top management, as well as the organization in the safety of the employees. Discussion of the new policy outlines the reason for developing the new system. Moreover, the communication should enable the employees understand their responsibilities and accountabilities when it comes to the new policy. In this case, the policy was communicated effectively since at the start of his employment at Sinbad, he was clearly informed that the policies were bound to change to fit the current social and economic and social trends. The other issue of communication of the policy is the posting of the policy. The new policy should be posted throughout the organization and displayed in such a way that the employees are constantly reminded and briefed about the plan. The policy should be broadly presented and publicized in all of the of the organizations notice boards. In Sinbad’s case, no information is given on whether the new policy was publicized or the employees were just ambushed with the policy. If the policy was not publicized, then Jason is under no obligation to provide a urine sample for testing of drugs but if the plan were promulgated then he should provide the urine sample. The other issue is that only Jason has declined to provide his urine sample while the other employees have complied with the new policy. This case is usually referred to as individualization that at times undermines trust and damages the organizational performance. A new policy will often face resistance from some employers and Jason happens to be one of such kind of employees. Moreover, the process of resolving grievances and other disputes are perceived to be fair.7 In Sinbad’s context, the company has punished Jason for refusal to provide a urine sample. However, the company not bothered to listen to the concerns raised by Jason before disciplining. The concerns that Jason has include the fact that he is worried about the violation of his civil liberties. There is no way a policy can be deemed to be fair if it violates the privacy rights of an employee. In Jason’s context, he has raised very genuine concerns about the violations of his civil liberties by the collection of the urine sample. Rather than the company addressing the concerns, Sinbad has resorted to punishing him. Sinbad could have explained that the urine sample could not be used for any other purpose other than the testing of the drug. Moreover, Sinbad could have gone further and explained to Jason that the urine sample could be disposed of after it had been used. Given that the company did not disclose this, Jason was bound to have privacy concern. From this point of view, Jason is under no obligation to provide any urine sample. This can only be done once the privacy concerns are addressed until that time; I would advise Jason not to provide any urine sample. With this information, Sinbad could also have the loopholes in the new policy before implementation. Even though the Sinbad had made it clear that the policies were bound to change, it could have sought the input of the employees since the policy was going to affect them. If this could have been done, then the concerns raised by Jason could have been addressed before the implementation. Furthermore, the implementation of the new policy could have been smooth could have been smoothly done if the employees felt that they were involved. However, this is usually dependent on the policy of the company on the inclusion of employees in the development of policies. The other condition of workplace drug testing is on whether the test is relevant to the job the employee is doing. This situation helps the organization determine which employees need drug testing and which employees do not need the test. For the job that Jason is doing, the drug test is essential. Given that he mainly deals with fireworks, any blunder could lead to something fatal if he is under the influence of drugs. However, this argument does not stand any chance given the number of years that Jason has worked for the Sinbad. A question arises then why all over a sudden; Sinbad would want to test the employees for drugs. For this reason, Jason should not comply with the new policy of providing the urine sample. Regardless of this, drug testing in the workplace has its benefits. Drug testing helps in improving the employee’s productivity. Moreover, drug testing promotes safety in the workplace and decrease employees theft and absenteeism. What is more, drug testing helps an organization reduce health and insurance costs. However, these benefits only seem to be to the company and not the employee. For this reason, I would advise Jason not to give the urine sample. Drug testing in the workplace also has its disadvantages that by far outweigh the benefits. Some of the disadvantages of drug testing include the fact that it invades the privacy of the employee. Jason has cited the concern as his main reason for not taking giving up his urine sample. Moreover, drug testing violates the employee's right to due process; in Sinbad’s case it comes out clearly that the policy is violating this right since the employees were not involved in drafting of the plan. What is more, drug testing may be used as a method of discriminating against some employees. Drug testing also lowers employee morale and conflicts a company’s values of honesty and integrity. At times, drug testing ignores the effects of prescription drugs, alcohol and over the counter drugs. In Jason’s case, some of these disadvantages do apply hence he should not give up his urine sample.8 Furthermore, the Victoria State government guarantees several rights that have to be fulfilled before an employee takes a drug test. The conditions are the workplace policy should be explained to the employee. Moreover, the testing procedure should be explained to the employee before any drug test takes place. What is more, the employee should be made aware of the consequences of refusing to take the drug test. The other condition is that the employee should be accorded with privacy at the time of providing the sample. It is mandatory that the company fulfills all these condition before any drug test takes place.9 In my estimation, Sinbad has not fulfilled all these conditions hence the drug test is invalid. For this reason, I would advise Jason not to give his urine sample. Conclusion To conclude, although Sinbad’s new drug policy aims to improve workplace safety, it has not been done in an appropriate way. The concerns that have been raised by Jason should be addressed before any urine samples are collected for drug testing. After taking information about employment law, it is my view that Jason should not provide the urine sample. The information presented in this essay clearly shows that Sinbad has not fulfilled all the conditions of employment law when it comes to drug testing. Until these conditions are met, any further urine samples collected from Jason or other employees should be deemed to illegal. Furthermore, Sinbad has disciplined Jason for something that had not been explained to him. With this information, Sinbad should first explain to Jason the process of the drug test. If Sinbad fails to take back the disciplinary measures that it has taken against Jason, then the law provides avenues where he can seek redress. Jason can find a lawyer and present his case in a court of law where Sinbad will be given an oppotunity to respond to the concern10. The court will then make a decision based on the facts that will be presented by both Jason and Sinbad. However, I think the courts will lean toward Jason’s side because he has a strong case. Moreover, Jason can arrange to meet the human resource officer of Sinbad and explain his concerns to the manager. The manager will in turn explain to Jason the company’s positions on workplace drug testing and why the test is essential. If all these avenues fail to address the concerns that Jason has raised, he can report the matter ‘WorkSafe Victoria’ that will then take up the case and try to find a viable solution. Until a time, I would advise Jason not to provide any urine sample for drug testing. Bibliography Aswathappa, K. Human Resource and Personnel Management. New Delhi: Tata McGraw-Hill, 2005. Print. Berkowitz, Philip M, Thomas Müller-Bonanni, and Anders Etgen Reitz. International Labor and Employment Law. Chicago, Ill.: Section of International Law, American Bar Association, 2008. Print. Campbell, Dennis. Employment Law: Comparative Law Yearbook of International Business, Special Issue, 2006. Wolters Kluwer Law & Business, 2007. Print. Creighton, W. B, and Peter C Rozen. Occupational Health and Safety Law in Victoria. Sydney: Federation Press, 2007. Print. Deery, Stephen, and Richard Mitchell. Employment Relations. Leichhardt, NSW: Federation Press, 1999. Print. Endeavor Energy v CEPU [2012] FWAFB 4998 Ghodse, Hamid. Addiction at Work. Aldershot, Hants, England: Gower, 2005. Print. Karch, Steven B. Workplace Drug Testing. Boca Raton, FL: CRC Press, 2008. Print. McCallum, R. C. McCollum’s Top Workplace Relations Cases. Sydney, N.S.W.: CCH Australia, 2008. Print. McKinnon, Ron C. Changing the Workplace Safety Culture. Boca Raton: CRC Press, 2013. Print. Www1.youthcentral.vic.gov.au, 'Taking a Drug Test For a Job Interview - Youth Central'. N.P., 2015. Web. 17 Apr. 2015. Read More